In these conditions, the following words shall have the following meaning:-
“Buyer” means XpressFish Limited of 351 South Boulevard, Hessle Road, Hull HU3 4DY, United Kingdom;
“Contract” means the Contract between Seller and Buyer for the purchase and sale of the Goods that incorporates these conditions.
“Goods” means the Goods which the Seller is to supply to the Buyer in accordance with the Contract and these conditions.
“Inco-terms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made.
“Seller” means the person, firm or company who accepts the Buyer’s offer for the purchase of the Goods or whose order for the Goods is accepted by the Buyer. Where Seller contracts on behalf of any other party, including (but not limited to) as agent, shipper, holder, consignee, freight forwarder, or person entitled to possession of the Goods, then the term “Seller” shall include such other party.
“Working Day” means a day (other than a Saturday, Sunday or Public Holiday) when the banks in London are open for business.
2. Basis of the Sale
i) Where an agent (not purporting to be Seller) represents the Seller, the agent warrants that it is the authorised agent of the Seller and that it accepts these conditions not only for itself but also on behalf of the Seller.
ii) Where the Seller is not the owner of the Goods but is contracting for and on behalf of the owner of the Goods, the Seller warrants that it is the authorised agent of the owner of the Goods and that it accepts these conditions not only for itself but also as agent on behalf of the owner of the Goods
i) Seller shall sell and Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by Buyer (including acceptance by email), or any order of the Buyer which is accepted by Seller (including acceptance by email), subject in either case to these conditions, which shall govern the Contract to the exclusion of any other terms and conditions to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by Buyer.
ii) No terms or conditions endorsed upon, delivered with, or contained in Seller’s quotation, acknowledgement or acceptance of order, invoice, or similar document, shall form part of the Contract and Seller waives any right which it otherwise might have to rely on such terms and conditions. Use by Buyer of any order number or Seller’s reference number for that order shall not be or be deemed to be an acceptance by the Buyer of any terms and conditions of the Seller subject to which that order was made or purported to be made.
iii) No variation to these conditions shall be binding unless agreed in writing between the authorised representatives of Buyer and Seller.
iv) Buyer shall provide Seller with confirmation of the applicable specification for the Goods.
i) The price of the Goods shall be as agreed between Buyer and Seller and as confirmed by Buyer’s purchase order (including email confirmation).
ii) Prices quoted by Seller are quoted on the basis specified in the Contract, e.g. free on board (FOB), cost and freight (C&F), free alongside ship (FAS), cost, insurance and freight (CIF) or delivered duty paid (DDP).
4. Terms of Payment
i) Subject to any special terms agreed in writing between Buyer and Seller, Buyer shall pay for the Goods within [ ] Working Days of delivery to the Buyer of the invoice, original bill of lading and any other original document required to be supplied to the Buyer by the Seller.
ii) Time for payment of the price shall not be of the essence of the Contract.
iii) Without prejudice to any other right or remedy Buyer may have, Buyer shall be entitled to set off against any amount payable by Buyer to Seller under the Contract, any amount owing at any time from Seller to Buyer or the value of any claim Buyer may have against Seller.
i) The Goods shall be shipped by the Shipment Date and delivered by the Specified Delivery Date in accordance with the Contract and these conditions (or as otherwise confirmed to Seller in writing (including email confirmation) and the time for delivery shall be of the essence.
ii) Where the Seller is responsible for arranging a Contract of Carriage for the Goods, and there is a choice of routes available, the Seller shall use the most direct/quickest route so as to minimise the duration of the carriage of the Goods.
iii) If the Goods are not delivered on the due date, then, without prejudice to any other right which it may have, Buyer reserves the right to:-
(a) refuse to accept delivery or any subsequent delivery of the Goods which Seller attempts to make;
(b) recover from the Seller any expenditure reasonably incurred by Buyer in obtaining substitute goods from another supplier; and
(c) claim damages for any additional cost, loss or expense, including, but not limited to, any demurrage or quay rent, incurred by Buyer which are in any way attributable to the Seller’s failure to deliver the Goods on the due date.
iv) Where Buyer agrees in writing to accept delivery by instalments, the Contract shall be construed as a single Contract in respect of each instalment. Nevertheless, failure by Seller to deliver any one instalment shall entitle Buyer at its option, to treat the whole Contract as repudiated.
v) Until the Goods are accepted by the Buyer, Buyer reserves its rights under clause 7(iii) below.
6. Risk and Property
i) Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery in accordance with the agreed Inco Term.
ii) Property in the Goods shall pass to the Buyer on physical acceptance of the Goods by the Buyer, unless the parties agree otherwise.
7. Warranty and Liability
(a) Seller warrants to Buyer that the Goods:-
i) will be supplied packed in export quality cartons at suitable temperature in order to withstand the anticipated voyage from Seller to Buyer and properly labelled in accordance with all appropriate regulations.
ii) at the time of delivery, and at the time of importation to the United Kingdom the Goods will correspond with the specification and will comply with the Sale of Goods Act and all applicable statutory requirements for the importation of fish and fishery products into the UK, including, but not limited to, EC Regulation 853/2004 as amended or superseded.
iii) that Seller has good title to the Goods free from all liens, charges and encumbrances and has the right to sell the Goods.
b) Buyer shall have the right, but not obligation, to inspect and test the Goods at any time prior to delivery and notwithstanding any such inspection or testing, Seller shall remain fully responsible for the Goods and any such inspection shall not diminish or otherwise reduce the Seller’s obligation under the Contract.
c) Without prejudice to any other rights Buyer may have, if any of the Goods are not supplied in accordance with, or Seller fails to comply with, any of the terms of the Contract or these conditions, Buyer shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods have been accepted by the Buyer:-
(i) to rescind the order;
(ii) to reject the Goods (in whole or in part) and return them to the Seller at the risk and cost of the Seller on the basis that a full refund for the Goods so returned shall be paid forthwith by the Seller.
d) At Buyer’s option, to give Seller the opportunity, at Seller’s expense, either to remedy any defect in the Goods or to supply substitute goods;
e) To refuse to accept any further deliveries of the Goods but without any liability to the Seller; and
f) To claim such damages as may have been sustained as a consequence of the Seller’s breach or breaches of the Contract.
8. Insolvency of the Sellet and Termination
i) Without prejudice to any other right or remedy available to Buyer, Buyer shall be entitled to cancel the Contract, or suspend any further deliveries of the Goods under the Contract, without any liability to Seller if Seller (or its parent company) becomes insolvent or fails to pay its debts or obligations when due or makes any assignment for the benefit of creditors, or files for a voluntary bankruptcy petition or has a petition in bankruptcy filed against it, or is adjudicated bankrupt or insolvent or a receiver or trustee is appointed for its business or suffers any event analogous to any of the above in any jurisdiction.
ii) A termination of the Contract, however arising, shall be without prejudice to the rights and duties or Buyer accrued prior to termination.
Seller shall keep Buyer indemnified in full against all direct, indirect or consequential losses (all three of which terms include without limitation, loss or profit, loss of business, depletion of goodwill, loss or market, loss of opportunity) loss, damages, injury, penalties, fines, levies, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by Buyer as a result of, or in connection with, any claim made against Buyer in respect of any liability, loss, damage, injury or costs sustained by Buyer’s employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury or cost was caused by, relates to, or arises from, the Goods as a consequence of a direct or indirect breach of negligent performance or failure or delay in performance of the terms of the Contract by Seller.
i) Seller shall not be entitled to assign the Contract without the prior written consent of Buyer.
ii) Any notice required or permitted to be given by either party to the other under these conditions shall be in writing (including email) addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified (including an email address).
iii) Failure or delay by the Buyer in enforcing or partially enforcing any provision of the Contract or these conditions shall not be construed as a waiver of any of its rights.
iv) If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions and the remainder of the provision in question shall not be affected thereby.
v) Buyer and Seller do not intend that any term of the Contract or these conditions shall be enforceable by virtue of the Contract (Rights of Third Parties) Act 1999 by any person that is not a party to it.
vi) The Contract and these conditions supersede and have precedence over all previous sale terms and conditions, including verbal discussions and all exchange of correspondence related thereto, whether by fact, letter or email between the Parties except as specifically provided elsewhere herein.
vii) English law shall apply to these conditions and the Contract. All actions and disputes arising under the Contract and these conditions shall be brought before the High Court in England and no other Court shall have jurisdiction with regard to any such action, provided that nothing in these terms and conditions shall affect or prejudice the right of the Buyer to take action in accordance with the law of any country or state, to bring a claim, or enforce a lien, or obtain security by seizure, attachment or arrest of assets for any amount due from Seller to Buyer under the Contract.